The
appellant was retired from the public service under s 15(3) of the Public Service Act
(Cap 26:01) and General Order 18.3. He challenged the validity of that decision
in the Industrial Court. The respondent raised the objection in limine that the
Industrial Court lacked jurisdiction to hear the matter as no referral
certificate had been issued in terms of either s 8(10) or s 8(11) of the Trade
Disputes Act (Cap 48:02). The court upheld the objection and dismissed the
appellant's claim. The appellant appealed against that decision.

Held:
(1) The objection was correctly upheld: the Industrial Court lacked
jurisdiction to entertain a trade dispute in the absence of a referral
certificate issued in terms of either s 8(10) or s 8(11) of the Trade Disputes
Act as it was not then properly before the court in terms of s 18(1) of the
Trade Disputes Act. Botswana Railways' Organisation v Setsogo and Others
[1996] B.L.R. 763, CA applied.

APPEAL
against upholding of objection in limine. The facts are sufficiently stated in the
judgment.

M Marumo
(with him L Morapedi) for the appellant.

B G
Toteng for the respondent.

Judgment

Foxcroft
JA:

On 19 May
2008 the appellant received a letter from the office of the President informing
him of the decision of the Permanent Secretary to the President (the Permanent
Secretary) to retire the appellant from the public service with effect from 30
May 2008. The decision had been taken in accordance with s 15(3) of the Public
Service Act (Cap 26:01) and General
Order 18.3. The appellant challenged the validity of this decision in the
Industrial Court claiming that procedural irregularities had occurred in
reaching the decision, and that he had had a legitimate expectation that he
would work until the age of 60 years.

Before
filing the answering affidavit of the Permanent Secretary the respondent filed
a notice to raise points in limine. It reads as follows:

'1. In terms of section 18(1)(a) of the Trade
Disputes Act, this court has no jurisdiction to hear this matter as it involves
a dispute of interest.

2. To the extent that Applicant seeks to set aside
the exercise of an executive power, instant proceedings amount to a Review and
Industrial Court has no reversionary jurisdiction except in limited
circumstances provided for under section 18(1)(c).

3. The jurisdiction of the Court cannot be invoked
without a referral certificate except in urgent applications as provided in
section 20 of the Trade Disputes Act.'

This was not
an urgent application.

The
Permanent Secretary set out a defence on the merits in his answering affidavit
but, by agreement, only the points in limine were argued when the matter came
before the Industrial Court. De Villiers J, presiding in that court, dismissed
the first two points in limine but upheld the third point in limine. The
finding of the court was that the matter had not been referred to the
Commissioner of Labour or a delegated labour officer for mediation and therefore
no s 8(10) or s 8(11) certificate had been issued. Since the required referral
to the Industrial Court had not taken place, the:

'... alleged trade dispute is therefore not properly before
this Court in terms of Section 18(1) of the said Act and therefore this Court
has no jurisdiction to determine this alleged trade dispute.'

It is this
last finding which was on appeal to this court. No counter-appeal has been launched in
respect of the findings on the first two points in limine and the only issue
before this court is whether or not the Industrial Court had jurisdiction to
determine the matter in the absence of a referral certificate issued either in
terms of s 8(10) or 8(11) of the Trade Disputes Act (Cap 48:02).

Mr Marumo,
who appeared with Mr Morapedi for the appellant, submitted that it would never
have been the intention of the legislature to make a certificate which is
entitled a 'certificate of failure' in s 8(10) and 8(11) of the Trade Disputes
Act an absolute prerequisite for the invocation of the jurisdiction of the
Industrial Court. He also submitted that the appellant sought a declaration of rights in the
Industrial Court and that a mediator is not empowered to issue a declaration.
Accordingly, so the argument ran, it could have served no purpose to first
approach a mediator.

Developing
this point in argument, Mr Marumo submitted that the decision of Amissah P in Botswana
Railways' Organisation v Setsogo and Others [1996] B.L.R. 763, CA that a
certificate of referral was an essential prerequisite for a hearing in the Industrial Court,
was not a bar to the relief sought by his client in this matter. The reason for
this advanced by Mr Marumo was that that decision of the Full Court was reached
before the amendment brought about by s 2 of the Trade Disputes Act which made
the Commissioner a public officer subject to the Public Service Act.

The Public
Service Act provides in s 8(1) that:

'(1) The Permanent Secretary to the President shall be the
head of the public service and shall, subject to the Constitution and this Act,
be responsible for the administration of the public service.'

It followed,
Mr Marumo submitted, that the Commissioner of Labour, labour officers and persons
constituting the panel of mediators are all under the ultimate control of the
Permanent Secretary. This was emphasised by s 3(4) of the Trade Disputes Act.
Because the mediation process in this matter would only have involved a junior
public officer seeking to resolve or facilitate a settlement between the
principal secretary (his ultimate supervisor) and another public officer
(appellant), it was
unthinkable that the legislature would have made a 'certificate of failure' an
absolute prerequisite in such a situation, lacking independence, so it was
said.

I do not
agree with this argument. There is nothing to show that a junior public officer
would have been the mediator in this case, and, in any event, the mediator
could not, as a matter of law, have made the declaratory order which the
appellant sought. No perception of bias could therefore ever have arisen. A
'certificate of failure' would have been readily obtained, regardless of the status of the
mediator. Mediators are appointed from a panel which has no necessary link with
the public service.

Another
argument advanced by Mr Marumo was that s 18(1) of the Trade Disputes Act
permitted the Industrial Court to hear every matter properly before it, while s
18(1)(g) drops the reference to properly before the court so allowing
the court:

'(g) generally to give such directions and do such
things as may be necessary or expedient for the expeditious and
just hearing and determination of any dispute before it'

regardless
of the manner by which the matter came before the court.

In my view,
this is an untenable interpretation of the subsection. Section 18(1) grants
jurisdiction to the Industrial Court in all matters properly before it, and goes on to spell out
powers of the court exercising jurisdiction. Section 18(1)(g) was
clearly intended to empower any other actions of the court dealing with any
matter which is properly before it not specified in subs (a) to (f).

Finally, Mr
Marumo submitted that Rule 4(1) of the current Rules for the Conduct of
Proceedings in the Industrial Court of Botswana lent support to his argument. That rule provides
that any trade dispute:

'(1) ... which need not necessarily be referred to and
which has not been referred to the Commissioner of Labour, may ... be referred
directly to the Industrial Court ...'

Then Rule
4(2) provides that:

'Any trade dispute ... which has ... been referred to the
Commissioner of Labour ... may as soon as possible after the Commissioner of
Labour has issued a certificate in terms of ... the Act, be referred to the
Industrial Court for hearing and determination ...'

The two
sub-rules are clearly dealing with two different situations, one where a
referral certificate is not necessary, and the other where it is.

There is no
merit in this argument.

In any
event, rules of this kind cannot override the intention of the Trade Disputes
Act to exhaust the remedial efforts of the Commissioner as fully set out by
Amissah P in Botswana Railways' Organisation v Setsogo (supra) at p 806D-F.

See also Botswana
Mining Workers' Union v Debswana Diamond Company (Pty) Ltd [2009] 1 B.L.R.
138, CA where it is pointed out at p 145 that Rule 1(2) provides as follows:

'(2) These Rules shall not have the force of law and shall
serve merely as guidelines for the conduct of proceedings in the
Industrial Court.'

It is also
worthy of note that the decision in the Botswana Railways' case (supra)
was reached a year after the current rules came into force, as Mr Toteng, for
the respondent, correctly pointed out.

Mr Toteng
submitted that no factual basis for the present argument by Mr Marumo had been laid in the
founding or replying affidavits of the appellant. It is so that the case
presented in the founding affidavit rested on two main points. One was that the
Permanent Secretary had not made the necessary recommendation to the director
in regard to the retirement of appellant. The other was that the appellant had
a legitimate expectation that he would work until 60 years of age. At this
stage of proceedings, the point in limine
had not yet been raised. After it was, by notice of 29 December 2008, the question of the need or not
for a certificate was not addressed in the replying affidavit. All that was
said in relation to this was:

'Constitutional provisions referred to by the Respondent
are not mandatory nor do they bar a party from approaching the Court without
first having gone to the Public Service commission.'

While the
argument before us was somewhat different, it was raised in the Grounds of
Appeal and is, in any event, a matter of law.

In my view,
a party to a trade dispute cannot decide that no purpose would be served by
following a laid down procedure for approaching the Industrial Court. If the relief
sought by a party were a declarator and reinstatement (as in the present matter)
a mediator would, as a matter of law, not be able to grant such relief. A
certificate of failure would then be easily obtained. All the more so if the
party seeking such relief were to challenge the independence or authority of
the mediator. I remain unpersuaded that the decision of this court in the Botswana
Railways' case
(supra) is no longer binding in the light of the passing of the Trade Disputes
Act.

It follows
that the decision of the Industrial Court that this matter was not properly
before it was correct. The appeal is dismissed with costs.